Work Product Case Analysis

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The decision is of particular significance in Wisconsin, although this case arises from Illinois’ courts.

In the majority of jurisdictions, it is unlikely that a dispute such as this would even arise, because attorneys are not allowed to assert the work product privilege against their own clients, although they can assert the privilege to bar the client from disclosing the materials to anyone else. Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30, 37 (1997).

Restatement (Third) of the Law Governing Lawyers sec. 46(2) (2000), states the majority rule: “On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.”

In a state that follows the majority rule, Jones Day would have had no ground for withholding the five boxes of privileged material in the first instance.

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The court specifically declined to decide whether Illinois follows the majority rule or not, however, inasmuch as it found that, regardless of whether Jones Day should have given the privileged materials to its client, the failure to do so could not be sanctionable in the absence of a subpoena or court order.

Wisconsin, however, follows the minority rule — notes, research, and other materials developed by attorneys for use in providing services to the client are the attorney’s property. In re ANR Advance Transportation Co, Inc., 302 B.R. 607 (E.D.Wis.2003); Wisconsin Ethics Opinions E-82-7 (1998).

Thus, a Wisconsin firm could easily find itself in the situation of Jones Day. Had the Seventh Circuit not reversed the lower court order and sanction, firms would have had to, as the Seventh Circuit found, “monitor the proceedings” of its former clients and “inject [themselves] into litigation simply because [they] possess[] information one of the parties might find useful” — an imposition on law firms that would be absurd.

– David Ziemer

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David Ziemer can be reached by email.